Solis-Alarcon v. U.S., Civil No. 05-1987(SEC).
| Decision Date | 17 May 2006 |
| Docket Number | Civil No. 05-1987(SEC). |
| Citation | 432 F.Supp.2d 236 |
| Parties | Silvio SOLIS-ALARCON, et al., Plaintiffs v. UNITED STATES of America, et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Luis A. Melendez-Albizu, Luis A. Melendez Albizu Law Office, San Juan, PR, for Plaintiffs.
Fidel A. Sevillano-Del-Rio, United States Attorney's Office, San Juan, PR, for Defendants.
Before the Court is Defendants United States of America's, U.S. Department of Justice's ("DOJ"), Drug Enforcement Agency's ("DEA"), Special Agent Felton Cameron's, and Special Agent Greg Calam's (hereinafter collectively referred to as the "Federal Defendants") motion to dismiss (Dockets ## 17-18). After multiple extensions of time, Plaintiffs opposed said motion (Docket # 38)1 and the Federal Defendants replied (Docket # 41). After carefully considering the parties filings and the applicable law, for the reasons set forth herein, Federal Defendants' motion to dismiss will be DENIED in part, GRANTED in part.
This complaint is the second one Plaintiffs file based on the same facts. Previously, on September 20, 2004, Plaintiffs filed a similar complaint, later amended.2 That complaint was dismissed without prejudice on June 13, 2005 for Plaintiffs' failure to serve within the time limit provided for in Fed.R.Civ.P. 4(m) (see, Civ.04-1977(PG), Dockets ## 6-7).
On September 16, 2005, Plaintiffs filed the instant complaint. They now allege that on September 18, 2003, at 5:00 a.m., Special Agents Cameron and Felton, along with other unnamed defendants searched their home and belongings without authorization; searched and detained, but not arrested, Plaintiffs Silvio Solis Alarcon and Migdalia Marquez; and confiscated Plaintiffs' Dodge Durango as it had allegedly been used in a drug transaction (Docket # 1 ¶¶ 13-18). Plaintiffs' car was later returned to its registered owner, the Banco Bilbao Vizcaya Argentaria (Id. at ¶ 19). Per the allegations in the complaint, at the time Defendants carried out the search they told Plaintiffs that they were looking for a man named Juan Diaz, who Plaintiffs stated they did not know (Id. at ¶ 17).
Resting on these facts, Plaintiffs filed their complaint and asserted four causes of action: (1) against Special Agents Felton Cameron and Greg Calam for Bivens violations; (2) against the DEA, the DOJ, and the United States for violations of the Federal Torts Claims Act ("FTCA"); (3) against unnamed state police defendants under Section 1983; and (4) against those same unnamed defendants under Articles 1802 and 1803 of the Puerto Rico Civil Code, 31 P.R. Laws Ann. §§ 5141-5142 (see, Id. at ¶¶ 25-33). As a remedy for these violations, Plaintiffs requested $1,000,000.00 for each Plaintiff for his or her emotional pain and suffering, $5,000,000.00 in punitive damages, costs, interests, and attorney's fees (Id. at ¶¶ 34-37).
Federal Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction, lack of jurisdiction over the person, insufficiency of service of process, and failure to state a claim upon which relief can be granted (see Fed. R.Civ.P. 12(b)(1), (2), (4) & (6)).
Fed.R.Civ.P. 12(b)(1) is the proper vehicle for challenging a court's subject matter jurisdiction. Valentin v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001). Under this rule a wide variety of challenges to the Court's subject matter jurisdiction may be asserted, among them those based on sovereign immunity, ripeness, mootness, and the existence of a federal question. Id., U.S. v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 8, n. 6 (1st Cir. 2005). See also, Hernandez-Santiago v. Ecolab, Inc., 397 F.3d 30, 33 (1st Cir.2005) (). With Rule 12(b)(1) motions based on considerations of sovereign immunity, as with Rule 12(b)(6) motions, the Court should construe the complaint liberally and treat all well-pleaded facts as true, according the benefit of all reasonable inferences to plaintiff. See, Murphy v. U.S., 45 F.3d 520, 522 (1st Cir.1995).
Fed.R.Civ.P. 12(b)(2) & 12(b)(4)
A party who seeks to have an action dismissed for lack of personal jurisdiction should assert that defense via Fed. R.Civ.P. 12(b)(2). See, Uffner v. La Reunion Francaise, S.A., 244 F.3d 38, 40-41 (1st cir.2001). Failure to set forth such a defense in a timely manner results in its waiver. Id.; Fed.R.Civ.P. 12(g), 12(h). Similarly, where a party has available a defense of insufficiency of process, that too must be timely asserted, lest it be deemed waived. Williams v. Jones, 11 F.3d 247, 251 n. 4 (1st Cir.1993); Fed.R.Civ.P. 12(g) and 12(h).
Under Rule 12(b)(6), in assessing whether dismissal for failure to state a claim is appropriate, "the trial court, must accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the plaintiff's favor, and determine whether the complaint, so read, limns facts sufficient to justify recovery on any cognizable theory." LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir.1998) (citations omitted). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), quoted in Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 119 S.Ct. 1661, 1676, 143 L.Ed.2d 839 (1999). See also Correa-Martínez v. Arrillaga-Beléndez, 903 F.2d 49, 52 (1st Cir. 1990) ().
But "[a]lthough this standard is diaphanous, it is not a virtual mirage." Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir.1997) (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988)). In order to survive a motion to dismiss, "a complaint must set forth `factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.'" Id. In judging the sufficiency of a complaint, courts must "differentiate between well-pleaded facts, on the one hand, and `bald assertions, unsupportable conclusions, periphrastic circumlocution, and the like,' on the other hand; the former must be credited, but the latter can safely be ignored." LaChapelle, 142 F.3d at 508 (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996)). See also Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999). Courts, moreover, "will not accept a complainant's unsupported conclusions or interpretations of law." Wash. Legal Found. v. Mass. Bar Found., 993 F.2d 962, 971 (1st Cir. 1993). "[I]t is enough for a plaintiff to sketch an actionable claim by means of a generalized statement of facts from which the defendant will be able to frame a responsive pleading." Langadinos v. American Airlines, Inc., 199 F.3d 68, 73 (1st Cir.2000) (quoting Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st Cir.1992) (internal quotation marks omitted)). In so doing, "a plaintiff can make allegations either on the basis of personal knowledge or on `information and belief.'" Id.
Since the motion to dismiss was filed by Federal Defendants, the Court need only concern itself with the claims asserted against them. As stated above, Plaintiffs averred that Co-defendants Calam and Cameron should be held liable under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for having violated Plaintiffs' constitutional rights under the Fourth and Fifth Amendments of the U.S. Constitution. They also asserted claims against the United States for torts recognized by Puerto Rico law and cognizable against the U.S. Government as per the FTCA.
Federal Defendants assert that the complaint against them should be dismissed because, since the statute of limitations ran out, the Court lacks subject matter jurisdiction; deficiencies in the service of process warrant dismissal and render the Court without jurisdiction over the Federal Defendants; Federal Defendants are entitled to qualified immunity; and, as to several claims and defendants, the complaint fails to state a claim upon which relief can be granted. We address each argument in turn.
Federal Defendants' first contention is that the Court lacks subject matter jurisdiction over Plaintiffs' Bivens claim because it is time barred (Docket # 18, p. 4). To that end, the Federal Defendants posit: (1) that the applicable statute of limitations is one year, (2) that more than one year has passed since the facts that give rise to the instant complaint and the filing of said complaint, and (3) that the filing and later dismissal without prejudice of a complaint (referring to Civ. No. 04-1977) does not toll the statute of limitations. They cite abundant case law purportedly in support of their contention that the complaint is time-barred. Our reading of that and other applicable case law, coupled with the facts alleged in the complaint, leads us to the contrary conclusion.
First, a brief clarification is in order: although Federal Defendants' assertion that the Bivens claim is time-barred, if true, would warrant dismissal of such a claim, it does not implicate the Court's subject matter jurisdiction. In the words of the First Circuit: "the statute of limitations as to a Bivens action against individual officers is simply an affirmative defense and does not affect a court's subject matter jurisdiction". Vega...
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